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1. The Civil Procedure Rules (CPR) set out the practice and procedure to be followed in the Courts [CPR 2.1]. Non-contentious and common form probate proceedings are exceptions to this general rule as the CPRs are not binding in this area [CPR 2.1(2) & White Book vol 2: 12.8]. Section 127 of the Supreme Court Act 1981 is the enabling Act for non-contentious proceedings and the Non-Contentious Probate Rules 1987 (SI 1987/2024) were made in exercise of this power.

2. However, the principles of CPRs are applicable provided there is no conflict with the rules that govern this sphere of law.

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3. The normal rule that “costs follow the event” had developed prior to the CPR and has survived the introduction of it [CPR 44.3(2)(a)]. This rule is universally applied to costs in non-contentious, contentious and Inheritance (Provision for Family and Dependents) Act 1975 (I(PFD)A 75) claims.

4. The same can be said for two long-established exceptions to this rule:

4.1. where a testator had been the cause of the litigation, costs should come out of the estate; and

4.2. where the circumstances led reasonably to an investigation of the matter, costs should be borne by both sides [as first identified in Spiers v English [1907] P 122].

5. In Kostic v Sir Malcolm Chaplin and Mr Martin Saunders (chairman and secretary of the Conservative Party Association) & HM Attorney-General [2007] EWHC 2909 (Ch), a contentious probate matter, Mr Justice Henderson held that these two recognised exceptions were guidelines not straitjackets. He went on and held that a number of propositions as to the meaning of the exceptions could be derived from authorities decided before Spiers.

6. First, in order for the first exception to apply, the touchstone was whether it was the testator’s own conduct or the conduct of those interested in the residue that caused the litigation which had led to his Will being surrounded with confusion or uncertainty in law or fact [Mitchell v Gard (1863) 3 Sw & Tr 275, 277; see further Williams, Mortimer & Sunnicks 18th edn, 2000 pp 446 – 454 and Coote’s & Tristram Probate Practice 29th edn, 2002 pp 691 – 700].

7. If it was the testor’s own conduct it should not matter whether the problem related to the state in which the deceased left his testamentary papers, for example, where a Will could not be found, or to the capacity of the deceased to make a Will.

8. Second, moral blameworthiness was not the criterion for the application of the first exception [Davies v Gregory (1873) LR 3 P & D 28, 31].

10. Fourth, the second exception applied, and each party would bear their own costs, where neither the testator nor the persons interested in the residue had been to blame, but where the opponents of the Will had been led reasonably to the bona fide belief that there were good grounds for impeaching the Will. The trend of more recent authorities was to encourage a very careful scrutiny of any case in which the first exception was said to apply and to narrow, rather than extend, the circumstances in which it would be held to be engaged.

11. In Kostic, the testator had suffered from delusions which were so far-reaching that a challenge to his testamentary capacity after his death was all but inevitable. The very fact that in his last Will, the testator left his estate worth £8 million to the Conservative Party Association, may for some illustrate his delusions with clarity.

12. In the substantive proceedings, the judge said that a positive case had to be made out before departing from the general rule that costs followed the event and then decided that Mr Kostic’s challenge to the validity of the Will was successful on the ground of lack of testamentary capacity. Accordingly, under the normal costs rule, the defendants would bear the costs of both sides.

13. However, it could be a very difficult question to determine the precise point at which eccentricity shaded into incapacity in the circumstances of this case [see paragraph 9 above].

14. That was particularly so as the testator had not sought treatment for his mental illness with the result that there was no medical evidence based upon an examination of him as a patient.

15. However, the Conservative Party Association was fully justified in investigating the issue of testamentary capacity once Mr Kostic’s claim to challenge the Will was advanced on a formal basis, so that their costs for such investigation should come out the estate down to the stage where a realistic assessment of the merits of the claim could be made.

16. Further, each side should bear its own costs in an intermediate period of the proceedings up to the date on which expert reports were exchanged; whereafter costs should follow the event.

17. Unusually, Mr Justice Henderson applied the recent “issue basis” for determining costs in this contentious probate matter despite judgment being awarded to the claimant against the defendants. He ordered that some costs were to be paid out of the estate of the testator, the claimant’s late father, other costs were to be borne by both sides, and a further proportion was to follow the event.

18. In so exercising his discretion Mr Justice Henderson was applying the CPR. In the author’s view the importance of CPR 43 to 48 on costs and in particular CPR 44.3 cannot be overstated. These rules are now the starting and often the finishing point, subject to the two exceptions above, of the consideration by the Court when it is determining what order for costs, if any, to make.

19. Helpfully as a broad brush approach the principles of the CPR and the aforesaid two exceptions are in the author’s view capable of being applied to non-contentious and contentious probate actions, and I(PFD)A 75 applications alike.

20. To help recover the maximum amount of costs some more precedents and principles will be set out in a second article.

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